Copyright Office, EFF wrestle with Kafkaesque royalty issue

A consortium of consumer groups weighs in with the Copyright Office on the …

If you've followed the travails of the digital music market, even casually, you've probably picked up at least a passing sense that the whole process of licensing music copyrights can be... complicated. But you probably thought that, like many jobs, it's all quite routine if that's what you do for a living. Sadly, it's not, as illustrated by an ongoing, seven-year bureaucratic proceeding of the kind that might seem familiar to Kafka.

The Copyright Office has been trying since 2001 to sort out issues surrounding the compulsory licensing of music. "What issues are those," you ask, "and how could they possibly take seven years to sort out?" That's a good question.

If you want to, say, open a new digital download store of your own, you need to secure permission from two groups: one that controls the copyright to the sound recording (usually a music label) and one that controls the copyright to the lyrics and melody (usually a music publisher).

The issues involved with this deceptively simple process are legion: if your store streams on-demand songs, do you need a performance license or a reproduction license? Do the copies made in RAM on the server side count as "copies" in the sense that they need to be licensed? What about RAM copies on the client side? Et cetera, et cetera, ad nauseam.

The Copyright Office has been trying to clarify the issues, making it clear that music stores can pay a government-mandated royalty rate and take out a compulsory license that covers everything they need to run a business. But in the course of the proceeding, the Copyright Office looks set to rule on some fairly technical issues, such as server-side copies, that a host of consumer groups argue should be left to the courts.

The EFF, Public Knowledge, the Center for Democracy & Technology, Consumers Union, US PIRG, and the CCIA joined forces to file a response (PDF) to the Copyright Office's proposed new rules yesterday.

According to EFF attorney Fred von Lohmann's explanation, "The issues are fantastically complex (even most copyright experts are perplexed by the morass surrounding digital music licensing)." Given this complexity, the groups would prefer the Copyright Office simply clarify the broader contours of the compulsory licensing debate at the heart of the case and leave the rest to be decided by courts on a case-by-case basis.

Should the Copyright Office weigh in on buffer copies and whether server-side copies count as "phonorecords" or not, the entire rule-making procedure could be undermined in the future if a judge rejects these narrow claims. As the filing puts it, "Should future judicial rulings reject CO interpretations contained in the final rule, those rulings could cast doubt on the rule as a whole."

"The question of the Copyright Office's regulatory authority is unclear, so it would be better served to let Congress and the courts settle the buffer issue rather than enter a legal morass," said Sherwin Siy, a staff attorney for Public Knowledge. "This is one of the fundamental issues for the digital age, and we think the legal process has already started to give us the answer to the question of the legal standing of buffer copies under copyright law."

If the whole debate sounds esoteric, it turns out it has quite practical consequences. The recent legal wrangling over Cablevision's network DVR, for instance, turned in part on the question of whether Cablevision's internal 1.2-second TV buffer was an unlawful copy of the video material in question. (The court said it was not.)

Given the fact that a lawsuit is one likely result of the Copyright Office's work, the EFF and other groups don't want the entire compulsory license clarification to be weakened by further rulings on buffer copies and related technical matters. Such issues are only now generating an emerging body of law and should be left to the courts or Congress until more consensus is reached, says the filing.